In re M.C.

          CONSIDERED ON BRIEFS ON FEBRUARY 12, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JOSEPH NEILES Retired Judge

          MARTY J. JACKLEY Attorney General JOSEPH N. THRONSON Special Assistant Attorney General Department of Social Services Pierre, South Dakota Attorneys for petitioner and appellee State of South Dakota.

          MARK KADI Minnehaha County Public Advocate Sioux Falls, South Dakota Attorneys for respondent and appellant K.C.

          JENSEN, JUSTICE

         [¶1.] K.C. (father) appeals a dispositional order in a child abuse and neglect proceeding that awarded M.J. (mother) custody of M.C. (child), currently thirteen years old, with supervised visitation rights for father. We summarily affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶2.] Mother is thirty-six years old. Mother resided in Sioux Falls during most of the proceedings, but she resided on the reservation and temporarily stayed in other locations during the case.^[1] At the time of disposition, mother had five children. This case, however, concerns only child, as the other children had different fathers. Father is a forty-seven-year-old resident of Sioux Falls. He is not Native American. The record is not clear on when his relationship with mother began or ended. However, in 2010, father began living with a girlfriend who had her own two children. Father and his girlfriend eventually married.

         [¶3.] Child was born in 2004, and his residence shifted back and forth between mother's and father's homes. This changed in 2007 when mother's brother physically abused child and mother and father stopped cooperating on custody matters. Father brought a paternity/custody action against mother and was awarded custody with visitation rights granted to mother. Mother exercised her visitation rights infrequently as time went on. The relationship between father and mother worsened during this time.

         [¶4.] In the fall of 2011, mother requested an overnight visit with child because child's grandmother was coming for a visit. Father allowed the overnight visit and told mother that child had gotten into trouble for an incident at school and that he had "whooped child's ass" for his misbehavior. Based upon prior incidents, mother suspected child would be bruised and looked child over, finding bruises down his back to his posterior. Although mother feared losing visitation with child, she took him to school the next morning and talked to child's teacher about the incident at school and child's bruises. The teacher notified her superiors, and after examining child's bruises, the school officials reported the matter to law enforcement and the South Dakota Department of Social Services (DSS).

         [¶5.] The authorities observed marks on child's body, including marks across his legs and a bruise on his back. Child told them that father "whooped him" for his misbehavior at school and imposed other discipline including making child hold books out away from his body while keeping his arms straight. Child was crying and upset during the conversation. He worried that if father found out he had talked about the incident he would get "whooped" again.

         [¶6.] Child was taken into temporary custody and transported to a local child protection/advocacy center for a forensic interview and medical examination. Child repeated his remarks about being "whooped" by father and further mentioned being hit with a belt and father's fist. The medical examination revealed injuries to child's upper thighs, back, and buttocks. One of the bruises appeared to be a "pattern bruise" caused by a belt buckle.

         [¶7.] Based upon an investigation, including interviews with father, the State filed an emergency petition on October 20, 2011, alleging abuse and neglect of child. A more detailed petition was filed on November 8. Child remained in DSS custody.

         [¶8.] The adjudicatory hearing began on February 15, 2012, and continued on March 13. Following the adjudicatory hearing, the circuit court issued a memorandum decision finding child abused and neglected as to both father and mother. The court stated that there was "no doubt in [its] mind that . . . child was physically abused" by father. As for mother, the court determined child was "without proper care . . . through no fault of [mother]." See SDCL ...